Don't Touch That Dial
There's a long section in the Copyright Act (sec. 110) that basically says that “the following list of deals we've made aren't copyright infringement.” For example, display of a movie in a classroom (unless it's an illegal copy), performance of a “nondramatic literary work” for free, and several other things. Here's a link to the section.
Although you may find this incredible, the content community is proposing an addition [search for HR 4077] to this section that would make automatically skipping commercials an infringement.
Every evening at dinner, my (otherwise silent) family watched Walter Cronkite. When the commercials came, someone would always turn down the volume. Then we'd sit in complete silence until the next bit of CBS news. This was our hallowed tradition. If there had been some kind of great device that let us skip the commercials completely, we would have embraced it. (If it had cost nothing. I'm from a thrifty and silent family.)
The proposed text, to be called the Family Movie Act (!) would say: “It is not an infringement of copyright
`[for a member of a private household to make imperceptible] limited portions of audio or video content of a motion picture during a performance in or transmitted to that household for private home viewing, from an authorized copy of the motion picture, or the creation or provision of a computer program or other technology that enables such making imperceptible and that is designed and marketed for such use at the direction of a member of a private household, if-
`(A) no fixed copy of the altered version of the motion picture is created by such computer program or other technology; and
`(B) no changes, deletions or additions are made by such computer program or other technology to commercial advertisements, or to network or station promotional announcements, that would otherwise be performed or displayed before, during or after the performance of the motion picture.';…
Translation: you can turn the volume down or skip the commercials by hand, sure. But you MAY NOT create a computer program that would automatically skip the commercials, or turn the volume of those commercials down for you.
So the commercials have become even more important than the content, is that it? We MUST watch them? We can't use technology to help us skip them? We can't use our own devices to, like cars, drive us around neighborhoods we don't want to go to when we're on our way from point A to point B? If we're going to skip those neighborhoods, we're going to have to walk. Don't use that nasty technology.
And what's really important about this section is that it suggests that skipping commercials in a “transmission” is somehow an infringement of the distribution right. This is crucial to understand: copyright law provides the owner of the distribution right with the exclusive right to “publish” tangible copies of the content to the public. Publish means handing a copy of the thing over to someone else.
Now the big push by the content community is to make online, electronic transmission of content part of the distribution right — even though the tangible object, the fixed version of the content, isn't created until it's reassembled by the recipient's browser or other client software. There simply isn't a tangible object being handed from one person to another when you're dealing with online transmission.
This move is much more important than attacking the skipping of commercials. It would potentially enable a copyright owner to control all transmissions of the bits of their content online as part of the “distribution” of that content. All secondary transmissions would be violations of the “distribution” exclusive right. All secondary markets would be controlled, notwithstanding the first sale doctrine's notion that you only get one chance to sell something.
So: keep up the pressure on HR 4077.
No induce — for now
Following some extreme brinksmanship — will Sen. Hatch try to ram through some version of the Induce Act that we haven't even seen? — it looks as if Induce is dead for the moment.
But Barnabas Collins looked pretty dead from time to time too. It's a useful bet that we'll see Induce-like legislation proposed again, and soon. (Sen. Hatch is, of course, stepping down from the chairmanship, and that may change the landscape.)
Wouldn't it be a better idea, she said plaintively, to compete by offering low-cost, whizbang-searchable sources of content online — rather than through legislation and litigation? It's true that the RIAA has good reasons to want to reverse the effects of the 9th Circuit's Grokster decision. But it's just too hard to define “bad” P2P systems without running the risk of chilling [pdf] the development of perfectly legitimate products and services. In fact, it may not be possible. P2P is an idea, like the internet.
To all of the people who worked constructively with the RIAA to try to define “bad” P2P, bravo. To all of the people who worked constructively with the RIAA to avoid constraining new legitimate technologies, bravo to you too. And to all a good (and long) night.